Sarawak defamation decision goes against Commonwealth precedents, says Chong

The Sarawak DAP chief says the apex courts of several Commonwealth countries have held that governments have no legal standing to sue a citizen for defamation, and only private persons have the legal standing to sue another for defamation.

In a statement this evening, he expressed regret over the appeal court decision to uphold a High Court judgement and increase the amount of damages and costs to a total of RM500,000 to be paid to the Sarawak government.

The defamation suit was brought against Chong for statements he made in 2013 over the “disappearance” of RM11 billion in state funds, in what has become known as the “black hole” case.

Chong said that his view was that, in principle, governments should not have a right to sue for defamation. “The public acts of public bodies or public men are certainly matters of public interest which are subject to animadversion (thoughtful criticism) or even hostile comment”, he said in a Facebook post.

“The rationale that a government cannot sue a citizen for defamation rests mainly upon the fundamental principle that a government is always subject to criticisms and has all the means and resources to clear its name against any defamatory comment and that the government’s legal rights to sue in defamation will curtail the citizens’ rights to freedom of speech,” Chong said.

He said he was contemplating to an appeal to the Federal Court, subject to the advice of my legal counsel. “It has been a long-drawn-out 13-year legal battle and has been exhausting on both my lawyers and I in terms of time, energy, and resources,” he said.

Chong said the apex courts in England, Canada, Australia and other Commonwealth countries have held that only private individuals have the legal standing to sue another person for defamation, and that the government has no legal standing to sue a citizen for defamation.

“There are also a few judges in our courts who subscribe to that principle of law,” while the Federal Court had also set the precedent that a political party has no cause of action to sue for defamation,” he said.

Chong noted that the state government of Sarawak in 2013 (which filed the suit) was formed by the Barisan Nasional coalition while the current state government is no longer formed by Barisan Nasional.

The case went to trial in January 2021, with proceedings spanning 26 days before concluding in July that year. In August 2022, High Court judge Alexander Siew, then a judicial commissioner, ruled that Chong had defamed the state government and the state financial authority, and awarded RM150,000 in damages.